DPP Revised Guidelines Prompts Discussion

national | rights, freedoms and repression | opinion/analysis Saturday December 16, 2006 14:43 by I. McCabe

In June 2006 the Director of Public Prosecutions revised his general guidelines. One section of the revised guidelines caused bemusement amongst some in the legal profession. Section 9 in particular which refers to the guidelines on disclosure is the one which has created a point of debate and criticism.

Ironically the DPP singled out the McKevitt case as a shining example of fair procedures on disclosure when in fact the opposite happened in the McKevitt trial. Both nationally and internationally legal observers have described the disclosure process used during the McKevitt case as one of the most blatant abuses on disclosure that they have ever witnessed.

The Supreme Court hearing referred to in the revised guidelines took place in March 2003 only three months before the McKevitt trial eventually got under way. The Supreme Court ruling laid down the guidelines which was to be used on disclosure. Unfortunately, during the trial of Mr McKevitt the prosecution authorities and the Special Criminal Court itself selectively used and occasionally disregarded the guidelines on disclosure laid down by the Supreme Court in March 2003. This development has led to a serious injustice in the case of Mr McKevitt.

In March 2003 Michael took a case to the Supreme Court challenging the lack of disclosure and in general the disclosure procedures used by the prosecution authorities in the lead up to and during his trial.

The Supreme Court stated in their judgment “ the prosecution are under a duty to disclose to the defence any material which may be relevant to the case which could help the defence or damage the prosecution and that if there is such material which is in their possession they are under a constitutional duty to make that available to the defence “ - McKevitt v. Director of Public Prosecutions (Supreme Court, 18th March 2003, Keane C.J.).

The Supreme Court judgment was very clear when they stated that any material, which may be relevant to the case, should be made available to the defence. However, it emerged during the trial that relevant material had been withheld from Michael over a two and a half year period and was accidentally uncovered during the trial by his lawyer.

That singular development further exposed the unfairness of the trial of Michael McKevitt. The prosecution when confronted by the revelation initially panicked and made a number of conflicting assertions until they composed themselves. The prosecution counsel pointed out to the Court that the Gardai had overlooked the material, later they said that the material concerned was irrelevant in their opinion and that is why it had not been disclosed. Either way, each assertion made by the prosecution counsel was inaccurate as the material was indeed relevant and should have been disclosed from the outset.

The material in question, a Garda surveillance document was disclosed for a completely different purpose, however while examining the document, Michael’s lawyer discovered a section, which exposed a very serious conflict in the prosecution evidence.

The late disclosure made during the trial described Garda surveillance of the movements of Mr McKevitt and his son on 17th February 2000 that materially contradicted the evidence of the chief prosecution witness Mr Rupert.

On Day 22 of the trial, the defence lawyers complained to the court that the material uncovered had been deliberately withheld which resulted in the misdirection of the defence lawyers in their preparation and structuring of the defence case. They also pointed out that relevant material was withheld thus denying Mr McKevitt adequate time and facilities for the preparation of his defence, which in fact was a breach of his rights under Article 38.1 of Bunreacht ns hEireann. Under the circumstances, the defence called for a new trial, however the three judges of the non-jury court denied the defence lawyers call and the trial continued.

There could be no doubt that the members of the Special Criminal Court acting as arbiters of law and fact denied Mr McKevitt equality of arms and a fair trial.

It is believed that the cunning use by the DPP of the McKevitt Supreme Court ruling as a case of fairness is a further attempt to deflect from the injustice of the trial. It also reveals a sense of embarrassment and nervousness from the DPP’s office on the entire McKevitt case.

The case of Michael McKevitt has now become the focus of attention amongst international human rights observers, lawyers and judges, indeed many have given their support calling for the conviction to be overturned.

It is expected that Mr McKevitt’s appeal will now go before the Supreme Court in the Spring of 2007. Many in the legal profession expect the conviction will be overturned on a point of law rather than allow it to proceed on to the ECHR in Strasburg and expose the hypocrisy and abuse of process by the Irish prosecution authorities and the non-jury Special Criminal Court.